Town of Peru v. State
| Decision Date | 23 November 1970 |
| Docket Number | No. 47204,47204 |
| Citation | 35 A.D.2d 875,315 N.Y.S.2d 775 |
| Parties | TOWN OF PERU, Appellant, v. STATE of New York, Respondent, |
| Court | New York Supreme Court — Appellate Division |
Robinson, Lewis & Bell, Plattsburgh (John L. Bell, Plattsburgh, of counsel), for appellant.
Louis J. Lefkowitz, Atty. Gen. (Henderson G. Riggs, Albany, of counsel), for respondent.
Before REYNOLDS, J.P., and STALEY, GREENBLOTT, SWEENEY and COOKE, JJ.
Appeal from a judgment entered upon a decision of the Court of Claims which dismissed the claim of the Town of Peru seeking compensation for the State's appropriation of a dock on Lake Champlain and a strip of land containing a road which provided access to the dock from Route 9.
At issue is the Court of Claims' finding that the property was held in a governmental rather than a proprietary capacity, and thus no award for the taking should have been made. The controlling test in cases such as this is whether the property was restricted to the use and benefit of the residents of the municipality (Village of Port Chester v. State of New York, 28 A.D.2d 1175, 284 N.Y.S.2d 516; City of New Rochelle v. State of New York, 19 A.D.2d 674, 241 N.Y.S.2d 272; Village of Canajoharie v. State of New York, 8 A.D.2d 656, 184 N.Y.S.2d 871). There is evidence clearly indicating that the Town of Peru maintained the dock from the time of its purchase in 1928, having a repaired the dock when necessary and having constructed a boat launching ramp; that the town board intended the boat dock to be for the use of the residents of the Town of Peru; that signs were erected on the road which led to the dock, saying 'Restricted for the Town of Peru' and that a 'guard' was 'stationed' at the dock, who was allowed to keep a houseboat at the dock in return for looking after the property was keeping non-residents off. There is no contrary evidence negating this testimony, the State limiting itself to the issue of the value of the subject property and the Court of Claims reasoning that since streets and highways generally are held in a governmental capacity and since the dock was appurtenant to the roadway, therefore the dock as well as the road were held in a governmental capacity cannot be sustained. Nor is the State's argument that 'since the subject dock is an indispensable adjunct to navigation on Lake Champlain--which is a public highway--it follows that the dock was used in a governmental capacity' valid. Involved is a dock...
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Atlantic States Legal v. Onondaga County Dept., 88-CV-0066.
...to compensation. Town of Peru v. State, 59 Misc.2d 49, 297 N.Y.S.2d 779 (N.Y.Ct. Cl.1969) reversed on other grounds 35 A.D.2d 875, 315 N.Y.S.2d 775 (3rd Dep't 1970). If the new use of the property does not, however, substantially change the public purpose for which the property is currently......
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City of Albany v. State
...cases such as this is whether the property was restricted to the use and benefit of the residents of the municipality.' (Town of Peru v. State of New York, 35 A.D.2d 875 #2, 315 N.Y.S.2d Thus, the Albany Basin formed a portion of the eastern terminus of the Barge Canal and was required to b......
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Town of Peru v. State
...Appellant. Court of Appeals of New York. June 7, 1972. Appeal from the Supreme Court, Appellate Division, Third Department, 35 A.D.2d 875, 315 N.Y.S.2d 775. Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Sol. Gen., Henderson G. Riggs, Joseph A. Romano, Asst. Attys. Gen., of counsel), fo......
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City of New York v. State
...is entitled to compensation for all of the acquired property. (See Town of Peru v. State, 59 Misc.2d 49, 297 N.Y.S.2d 779, revd. 35 A.D.2d 875, 315 N.Y.S.2d 775, app. dsmd. 30 N.Y.2d 859, 335 N.Y.S.2d 295, 286 N.E.2d 732 app. after remand 41 A.D.2d 989, 343 N.Y.S.2d 899; County of Warren v.......